A three-judge bench led by Eric Ogola has lifted conservatory orders preventing nominated Deputy President Kithure Kindiki from assuming office after the impeachment of Rigathi Gachagua.
“This matter holds significant public interest, and we remain committed to an expeditious examination of the petitions,”Ogola ruled.
“The conservatory orders issued on October 18 in Kerugoya High Court are discharged or and set aside.”
Ogola further stated that the matter will be mentioned on November 7, 2024.
While delivering the ruling, Justice Eric Ogola stated that their decision addressed three issues: first, whether the court has jurisdiction over the consolidated petitions.
Second, was if jurisdiction is affirmed, whether the matters raised in the petitions are justiciable, and third, if both previous questions are affirmed, whether the existing conservatory orders can be lifted.
Deputy President elect Kithure Kindiki and Rigathi Gachagua at a past event.
Three-Judge Bench Lift Conservatory Orders
Lady Justice Freda Mugambi in response to the question of jurisdiction stated that the authority to determine whether the procedure of such an impeachment process was due falls squarely within the jurisdiction of the High Court.
“Jurisdiction to hear disputes arising from the impeachment of the President and Deputy President does not lie with the Supreme Court within the realm of original and exclusive jurisdiction, instead, such jurisdictions may be exercisable within the Supreme Court appellate jurisdiction,” she ruled.
“We do hereby find and hold that this court has the jurisdiction to sit and determine the matter that is before it.”
Justice Eric Ogola stated that the matters raised in the petition are justiciable (proper to be examined in Courts of Justice) to settle the question on whether an impeachment is a political process.
“An impeachment decision decided can be challenged before the high court. The Kenyan system emphasizes oversight. The US position does not apply in Kenya Political question doctrine in the mud,” said Justice Ogola.
On his part, Justice Antony Mrima affirmed that the constitution of Kenya did not envisage scenarios where the Office of the Deputy President can be vacant.
“We take the position that the Constitution must remain fully operational at all times, and no court order should render any part of it inoperative or dormant. We hereby find and hold that public interest calls us to uphold the Constitution, which is, in any event, the will of the people. Therefore, public interest demands that the office of the Deputy President should not remain vacant,” affirmed Mrima.
High Court Judge Justice Mwongo Richard Mururu in Kerugoya issued orders preventing Interior CS Kithure Kindiki from assuming the office on October 18.
The Court’s decision was in response to a case filed by David Mathenge and Peter Kamotho.
On his part, Justice Anthony Mrima stated that when the office of the Deputy President is declared vacant, there is a period required to fill such vacancy.
He stated that they cannot provide a decision that might lead to suspending of any operations of the constitution and disrupting the intended balance of provisions.
Why Parliament Wanted Orders Granted to Gachagua Lifted
The National Assembly while challenging the order stated that Justice Mwongo granted an order which was final in nature, offending the rules of natural justice which dictates that both sides ought to be heard before issuing such an order with far-reaching implications.
Furthermore, it opined that the court issued the order without ascertaining whether it had the jurisdiction to entertain matters concerning the impeachment process.
They also raised concerns about how the courts expect Gachagua to collaborate with President William Ruto, given that he was removed from office for allegedly undermining his superior and contradicting cabinet decisions, according to fresh court filings.
It highlighted that the possibility of reinstating Gachagua is “even more remote” considering the grounds for his impeachment, which involved undermining the President.
Their lawyer Prof. Tom Ojienda contended that Paul Muite never submitted a medical report for Gachagua after telling the Senate that he had been admitted then they proceeded to walk out.
“Every opportunity was presented to the respondents to respond but they opted not to proceed,” he said.
Prof Githu Muigai stated that the impeachment process is a political process and that it why it goes to a political chamber and Senate sits as a political body.
Muigai held that the orders staying the nomination and National Assembly’s vote confirming Kithure Kindiki’s nomination as DP was overtaken by events and that the courts had “nothing to conserve”.
On the floor of Milimani Court, Deputy President Rigathi Gachagua’s lawyer, Elisha Ongoya, argued that the public was not given the opportunity to express their opinions on Kithure Kindiki’s suitability for the position of Deputy President.
Ongoya pointed out that no email address was provided for Kenyans to submit their feedback, especially considering that he is aware they are capable of doing so.
“Justice delayed is justice denied, while justice hurried is justice miscarried. The process of public participation was even taken away. When things happen in the night, we have reason to have our antennas high,” he said.
“Kenyans may view this moment as a challenge to our democracy; however, we should see these proceedings as an opportunity for our governance institutions.”
On his part, Veteran lawyer John Khaminwa stated that the Deputy President is not a minor position in Kenya’s political hierarchy.
Khaminwa also alleged that if the judges lift the conservatory order, it could lead to problems and unrest in the country.
“Those who want the DP out, let us assume he is kicked out. They will be the same people who will come and say President Ruto you must go. That will be chaos in the country. My lords, I am saying to you very respectfully, please do not try to lift the conservatory order as my learned friends are asking for,” said Khaminwa.
Ndegwa Njiru Explains Why Kindiki was Unfit
Ndegwa Njiru questioned Kindiki’s qualifications to hold the office of the deputy president and by extension that of the President and whether the IEBC possesses the requisite constitutional capacity to submit or endorse the name for the purposes of voting in Parliament.
“In the event where the current president is incapable of executing the functions of his office, the purported name, if sworn in, will be the one to take over. Will he have met the prerequisite qualifications?” Ndegwa posed.
“Currently the IEBC has no capacity to execute the administrative functions and has no capacity to execute the function under article 99 as read together with article 137 of the constitution.”
The lawyer further disputed that the secretary and the secretariat can only carry out the power vested in their offices when the commission is in place, excreting its powers since it implements what the commission has approved or resolved.
“The name that was submitted to parliament is not capable of replacing in the event this court dismisses out petition and upholds the petition the Deputy President of Kenya,” he said.
“If the orders are lifted, we shall not have a person has not been duly appointed in accordance with the constitution taking over the office of the Deputy President.”
Annah Nanjala Wekesa is a journalist at The Kenya Times, with a passion for crafting news-worthy stories that leave a lasting impact. She holds a Bachelor of Arts in Communication and Media from Kisii University. She has honed her skills in the art of storytelling and journalism. Her passion lies in the art of storytelling that resonates with audiences, driving a commitment to delivering news-worthy stories through the lens of integrity and precision. She can be reached at [email protected]
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